Ramsay v Commonwealth of Australia [2006] NSWSC 1389

New South Wales Supreme Court

CITATION : Ramsay v Commonwealth of Australia [2006] NSWSC 1389

HEARING DATE(S) : 21/11/06, 22/11/06, 23/11/06

JUDGMENT DATE : 14 December 2006

JUDGMENT OF : Bell J at 1

DECISION : 1. Pursuant to s 60G(2) of the Limitation Act 1969 the limitation period for the cause of action in this proceeding is extended to 20 March 2002; 2. The costs of the applicant's application are costs in the cause.

LEGISLATION CITED : Limitation Act 1969 Veterans' Entitlements Act 1986 (Cth)

Brisbane South Regional Health Authority v Taylor (1996-1997) 186 CLR 541 Commonwealth of Australia v Shaw [2006] NSWCA 209 CASES CITED : Commonwealth of Australia v Smith [2005] NSWCA 478 Purkess v Crittenden (1965) 114 CLR 164 Telstra Corporation v Rea; Smith per Santow JA at [103] Watts v Rake (1960) 108 CLR 158

PARTIES : Donald Maxwell Ramsay (Applicant) Commonwealth of Australia (Respondent)

FILE NUMBER(S) : SC 20094/02

COUNSEL : D Priestley (Applicant) S A Woods (Respondent)

SOLICITORS : Hollows Lawyers (Applicant) Blake Dawson Waldron (Respondent)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

BELL J

Thursday 14 December 2006

20094/02 Donald Maxwell Ramsay v Commonwealth of Australia

JUDGMENT 1 BELL J: This is an application to extend the limitation period to permit the applicant to bring proceedings against the defendant (the Commonwealth) for damages for psychiatric injury arising out of the Melbourne/Voyager collision. 2 The applicant's statement of claim was filed on 20 March 2002. A notice of motion claiming an order under s 60G of the Limitation Act 1969 (NSW) (the Act), that the limitation period for the cause of action in the proceeding be extended for such period as the Court determines, was filed at the same time as the statement of claim. 3 The applicant was born on 1 November 1943. The collision occurred on 10 February 1964. The limitation period for his cause of action expired on 11 February 1970. 4 The applicant pleads the following particulars of injury in his statement of claim: (a) severe shock; (b) severe anxiety and depression; (c) claustrophobia; (d) difficulties with sleeping, nightmares and flashbacks; (e) irritability and fatigue; (f) night sweats; (g) difficulty in concentrating; (h) moods swings, frustration and isolation; (i) post-traumatic stress disorder; (j) emotional detachment, insecurity and lack of confidence; (k) attempts to medicate himself by heavy use of alcohol with consequential impairment of body function; (l) hypertension; (m) acid reflux; (n) anxiety disorder; (o) generalised anxiety disorder; (p) panic attacks; (q) adjustment disorder; (r) reduced ability to engage in sexual intercourse; (s) obesity. 5 It is the applicant's claim that, but for the collision and the psychiatric injury that he sustained as a result thereof, he would have attained commissioned rank in the Royal Australian Navy (the Navy) and remained in the service until retirement at the age of 55 years. His claim for damages includes for economic loss by reason of impairment of his capacity to earn income and he claims damages for the lost chance that he would have remained in the Navy until qualifying for the Defence Force Retirement and Death Benefit entitlements. 6 Section 60G(2) of the Limitation Act provides: (2) If an application for an order under this section is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period as it determines. 7 The applicant bears the onus of establishing that it is just and reasonable for the Court to order that the limitation period for his cause of action be extended. Before the Court may give consideration to this question, it is necessary for the applicant to pass the threshold test posed by s 60I(1) of the Act, which provides: 1) A court may not make an order under section 60G or 60H unless it is satisfied that: (a) the plaintiff: (i) did not know that personal injury had been suffered, or (ii) was unaware of the nature or extent of personal injury suffered, or (iii) was unaware of the connection between the personal injury and the defendant's act or omission, at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted, and (b) the application is made within 3 years after the plaintiff became aware (or ought to have become aware) of all 3 matters listed in paragraph (a) (i)–(iii). 8 "Personal injury" is defined in s 11 of the Act to include any impairment of the physical or mental condition of a person. 9 The applicant swore an affidavit on 18 March 2003, in support of the present application (the first affidavit). He grew up in Perth and is the eldest of two children. He describes a satisfactory childhood. He completed Junior Year at high school at the age of 15 years. He wanted to join the Navy. He had performed relatively poorly at school in earlier years and his results had not reflected his ability. In his final year at school his mother warned him that the Navy would not accept him unless his performance improved. He went on to come top of his class. He was a member of the Cub Scouts and later, the Sea Scouts. 10 He joined the Navy on 3 January 1959 for a 12 year term. He was posted to HMAS Nirimba, where he trained as a fitter and machinist. 11 In his first affidavit the applicant describes his life in the Navy prior to the collision as fulfilling. He was a modest smoker, rolling his own cigarettes and consuming one packet of tobacco (2 ounces) per fortnight. He says that his drinking was moderate; a few drinks of whiskey and soda at weekends.